The Copyright Wars have finally reached the art world. Fueled by the ongoing backlash against digital culture, common forms of visual quotation have come increasingly under attack. The steady stream of anti-piracy propaganda disseminated over the past several decades by the music and movie industries has had the desired effect: everyone, including visual artists, is now equipped to think about art and creative culture in terms of “property” and “theft”. As a result, copyright infringement lawsuits, many of them meritless, have been on the rise, including those brought by artists against fellow artists. The freedom to comment, reference or borrow – the way art progresses over time – is being threatened.

Our ability to work freely, thus hindered, feeds back into a culture of increasing paranoia and self-censorship. But free expression, as Princeton computer scientist Ed Felton famously put it, requires the freedom to tinker. The inhibition of the freedom to tinker undercuts all creativity; it stops us from inquiring and from experimenting; it chills us in our pursuit of all that we, as artists and creative people, need to pursue. Since all of our civil rights begin with free speech, what is at stake here is what is most basic.

As an atmosphere of nervousness and dread continues to spread by ripple effect throughout the art community, we can be sure that there are many more copyright infringement cases in progress than the controversial high-profile ones we’ve read about in Artnet, Artinfo and The New York Times. These involve non-celebrity artists who have neither access to legal expertise nor the deep pockets that would allow them to protect themselves. Hence, regardless of the eventual legal outcomes of the high-profile cases, their most negative effect has already been achieved. In law they call this a chilling effect, which is when a legal action of any kind causes people to hesitate to exercise their legitimate right to express themselves. In reality it can be harmful in any number of ways, including to markets, but my concern is mainly is how chilling effects are harmful to an artist's creative process.

We may still hesitate, however, and wonder whether copying is or isn’t the same as stealing. Attorney and fair use advocate William Patry responds to this notion in a recent article (Part I and Part II) about copying and copyright reform:

Record companies, book publishers, movie studios and other media corporations are caught up in efforts to equate all copying of their works with theft. In fact, if we genuinely want to promote creativity, we must encourage copying. The idea that people copy because they lack creativity is powerfully harmful, and it runs counter to the history of copyright.To deny people the right to copy, intimately, from others, is to deny the essence of what it is to be a creative person.

The fact is, artists have always referenced and utilized – appropriated – pre-existing materials, including other art, as part of their source material, and as a way to engage in dialogue, whether through explicit copying or unconscious borrowing. Some may feel that where copying is achieved digitally, it crosses some ethical line, but digital technology has merelyprovided us with our latest set of tools for our age-old habits of copying and remixing.

So, if copying and appropriation are age-old and part of visual art’s lexicon, why the recent backlash? When did our understanding of appropriation and copying change, and so radically? Perhaps we can indeed blame the anti-piracy propaganda generated by the music and motion picture industries – their paranoia campaign has finally penetrated the art world’s walled garden. But rather than blame the music industry, we who are vested in the arts for whatever reason must take responsibility for this problem by examining our own flawed assumptions. We need to think again and think hard about the conditions required for creativity; we need to revisit the complex and layered history of art-making itself. And as issues of appropriation enter the broader public and legal debate, artists, historians, curators and others who are part of the visual arts community need to step up and explain why appropriation and other forms of visual referencing are essential to the making of meaningful art. We need to be able to defend our practices in clear language, in and beyond the courtroom. We need to make the case for appropriation.

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This article is drawn from my introduction to the panel, The Case for Appropriation, which took place at The School of Visual Arts in February 2012:

The Visual & Critical Studies Department presented The Case for Appropriation at the SVA Theatre at 333 West 23rd Street on February 16, 2012. Artist and NEWSgrist blogger Joy Garnett is joined in conversation by art historian and attorney Virginia Rutledge, critic and curator Rob Storr, and artist Oliver Wasow to discuss the creative methods and ideas associated with appropriation art today, as issues of appropriation enter the broader public and legal debate forum and copyright infringement lawsuits between artists rise. The panelists will discuss why appropriation and other forms of visual referencing are important elements of making art and how to defend these practices both in and beyond the courtroom.